TICHY v. CHIEF OF THE INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT

Filing 38

ORDER denying Defendant's 25 Motion to Dismiss. See Order. Signed by Magistrate Judge Tim A. Baker on 7/25/2018. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
GINGER TICHY,
Plaintiff,
v.
CHIEF OF THE INDIANAPOLIS
METROPOLITAN POLICE DEPARTMENT,
Defendant.

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No. 1:17-cv-04426-TAB-SEB

ORDER DENYING DEFENDANT’S MOTION TO DISMISS
I.

Introduction
At issue is a motion to dismiss filed by Defendant Chief of Police Brian Roach of the

Indianapolis Metropolitan Police Department. Plaintiff Ginger Tichy brings this action seeking
declaratory and injunctive relief against enforcement of section 431-702 of the IndianapolisMarion County Municipal Code, which is designed to prevent pedestrians from panhandling, or
otherwise soliciting, from drivers at intersections. Roach moves for this Court to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, or,
alternatively, based on abstention. However, the Court has subject matter jurisdiction and
declines to exercise its discretion to dismiss Tichy’s complaint. Therefore, the Court denies
Defendant’s motion to dismiss. [Filing No. 25.]
II.

Background
Tichy is a homeless person who relies on panhandling for income. [Filing No. 26-1, at

ECF p. 124, ¶ 1.] In May 2017, the Marion Superior Court in Indianapolis, Indiana, held Tichy
liable for violating section 431-702 of the Indianapolis-Marion County Municipal Code and
issued a permanent injunction ordering her compliance with the ordinance. [Id. at ¶ 3.] Section
431-702 states:

It shall be unlawful for a pedestrian to sit, stand or move within or upon a roadway,
or a median between two (2) roadways, or within the public right-of-way not
exceeding fifty (50) feet from the traveled portion of any intersection controlled by
an automatic traffic signal or stop sign, for the purpose of or while engaged in (by
oral or written methods): (1) Soliciting, or peddling, selling, advertising, donating,
or distributing any product, property, or service, including but not limited to tickets,
handbills, newspapers, or other printed material, to or from an occupant of a vehicle
in the roadway; or, (2) Conversation or discourse with an occupant of a vehicle in
the roadway.
Indianapolis - Marion County, Indiana Code of Ordinances § 431-702. Just six days after the
Marion Superior Court issued the permanent injunction, the City asked that court to hold Tichy
in contempt, which it did, for continuing to panhandle in violation of the injunction and the
ordinance. [Filing No. 26-1, at ECF p. 124, ¶ 4.]
In October 2017, instead of arguing the merits of the contempt charge, Tichy requested
relief from the judgment under Indiana Rule of Civil Procedure 60(B). [Filing No. 26-1.] She
alleged that the permanent injunction violated her right to free expression, the Indiana
Constitution, the Indiana Home Rule Act, and principles of “Due Process and fundamental
fairness.” [Filing No. 26-1, at ECF p. 128-29, ¶¶ 24-26, 29, 31.] In November 2017, while the
state proceedings continued, Tichy filed this federal lawsuit. [Filing No. 1.] Her arguments are
notably similar, but Tichy does not challenge the propriety of any state court ruling directly.
Rather, she asks this Court to declare the ordinance unconstitutional and issue a prospective
injunction against future enforcement. [Id. at ECF p. 6-7, ¶¶ 2-3.]
In January 2018, the Marion Superior Court held a hearing regarding Tichy’s Rule 60(B)
motion. The court determined that the ordinance is “without legal effect” because it violates
principles of preemption found in the Indiana Constitution, and the Indiana Home Rule Act.
[Filing No. 26-9, at ECF p. 18.] The state court issued an oral ruling because it wanted to avoid
any further delays but added that a written ruling would follow. [Id. at ECF p. 20.] The court

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noted that “the gist of [the written ruling] will be that . . . [the ordinance] is in violation, again of
Article 4, sections 22 and 23, and . . . the Home Rule statute.” [Id.] Nonetheless, Roach
continued to enforce the ordinance even after the January hearing. 1
III. Discussion
Roach argues this Court lacks subject matter jurisdiction to hear Tichy’s case, relying on
the Rooker-Feldman doctrine. In the alternative, Roach contends that the Court should exercise
its discretion and dismiss Tichy’s claims under Wilton-Brillhart abstention doctrine. Tichy
counters that her federal claim does not trigger Rooker-Feldman and that invoking the abstention
doctrine would require overturning Supreme Court precedent, which is outside the authority of
this Court. As discussed below, Roach fails to persuade the Court that dismissal is appropriate
under either Rooker-Feldman or Wilton-Brillhart.
A.

The Court Has Subject Matter Jurisdiction
Roach argues this Court lacks subject matter jurisdiction because it has only original

jurisdiction and cannot act as judicial review of a state court proceeding. While it is correct that
the Court does not have jurisdiction to review state court proceedings, Roach’s argument misses
the mark. He further argues this lawsuit is inextricably intertwined with state court proceedings
and that the federal and state court litigation present the same issues. However, Roach interprets
Rooker-Feldman more broadly than both the Supreme Court and the Seventh Circuit.
The Rooker-Feldman doctrine represents a limitation on the subject matter jurisdiction of
lower federal courts. Arnold v. KJD Real Estate, LLC, 752 F. 3d 700, 704 (7th Cir. 2014). This
limitation is based on the principle that “Congress empowered only the Supreme Court to
exercise appellate authority to reverse and modify state court judgments.” Id. However, the

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See Marion Superior Court Cause Nos. 49D04-1803-OV-009558 and 49D04-1804-OV-014332.
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doctrine is “narrowly confined” to only those cases where the federal plaintiff is attacking the
state court judgment itself. Id. In other words, the essence of Rooker-Feldman is that the lower
federal courts cannot offer judicial review of state court judgments. Zurich Am. Ins. Co. v.
Superior Court for Cal., 326 F.3d 816, 823 (7th Cir. 2003). But Rooker-Feldman does not
prevent federal plaintiffs from challenging the “statute or rule governing the [state court]
decision.” Skinner v. Switzer, 562 U.S. 521, 532 (2011). In Skinner, the Supreme Court
determined that Rooker-Feldman did not apply because the federal plaintiff was challenging the
constitutionality of the Texas statute that the state court authoritatively applied but not the state
court judgment itself. Id.
This Court has subject matter jurisdiction to hear Tichy’s complaint because she has not
requested appellate review of the state court decision. Rather, she is challenging the underlying
city ordinance that she was cited for violating. Like Skinner, Tichy asks the Court to determine
whether the law the state court authoritatively applied is constitutional. While this could have
the precedential effect of altering the state court’s decisions, Tichy’s federal claim does not
invoke the narrowly confined Rooker-Feldman doctrine because Tichy does not attack the state
court judgment itself.
Roach next argues that the state and federal cases are inextricably intertwined and that
this is precisely the type of situation Rooker-Feldman precludes. Roach further states that this
Court cannot grant Tichy’s requested relief without invalidating the state court’s judgment.
However, this argument fails to recognize the difference between Rooker-Feldman, a
jurisdictional question, and preclusion doctrine.
The Seventh Circuit has retreated from the inextricably intertwined standard. The
standard was set out in Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 603 (7th Cir. 2008), in

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which the Seventh Circuit held that Rooker-Feldman “applies not only to claims that were
actually raised before the state court, but also to claims that are inextricably intertwined with
state court determinations.” But subsequent Seventh Circuit cases questioned the validity of that
standard. See Cervac v. Littman, 551 B.R. 355, 362 (E.D. Ill. 2015) (collecting Seventh Circuit
cases that question the inextricably intertwined standard). Recently, the Seventh Circuit has
gone even further by determining that the inextricably intertwined language “should not be used
as a ground of decision.” Milchtein v. Chisholm, 880 F.3d 895, 898 (7th Cir. 2018). The
Milchtein Court further explained that if the state and federal cases are “intertwined” only in the
sense that they share a “factual or legal contention that was, or could have been, presented to the
state judge, then the connection concerns the rules of preclusion, which are not jurisdictional and
are outside the scope of Rooker-Feldman doctrine.” Id. The Court further concluded that “[t]he
vital question . . . is whether the federal plaintiff seeks the alteration of a state court’s judgment.”
Id. (finding Rooker-Feldman did not apply because the plaintiffs did not ask the Court to “alter
or annul any decision by a state judge”).
While the issues presented to this Court are substantially similar to those argued in state
court, this fact is within the domain of preclusion and abstention doctrines, which limit
duplicative litigation. Like Milchtein, Tichy challenges the constitutionality of the same city
ordinance that the state court applied, but she does not challenge any state court judgment itself.
[Filing No. 20.] At the time Tichy filed her complaint in this Court, she had requested relief
from judgment in state court. She does not ask this Court to similarly relieve her of past
judgments. [Compare Filing No. 20, at ECF p. 6-7, ¶¶ 1-5, with Filing No. 26-1, at ECF p. 3, ¶
16.] Rather, she asks this Court to declare section 431-702 unconstitutional and enjoin Roach
from future enforcement. Therefore, Rooker-Feldman is inapplicable.

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B.

The Court Declines to Exercise its Discretion to Abstain
Roach argues that the Wilton-Brillhart abstention doctrine urges this Court to abstain

from hearing Tichy’s complaint. In support, he contends that Tichy’s federal claim is
declaratory and that under the Declaratory Judgment Act, federal courts may, but are not
required to, declare the rights of litigants. Ultimately, the crux of Roach’s argument is that the
controversy between the parties can be better settled in the proceeding pending in state court
because there is limited federal interest, the issues presented here are precisely the same as in
state court, and principles of federalism and comity weigh heavily toward dismissal. Therefore,
Roach argues, Wilton-Brillhart counsels abstention.
Tichy counters that this case is governed by Wooley v. Maynard, 430 U.S. 705 (1977),
which Tichy contends expressly authorizes the type of prospective relief she requests.
Additionally, though Tichy does request both declaratory and injunctive relief, she contends that
her core request is injunctive. By contending that her claim is primarily injunctive, she
implicitly argues against the sort of discretion Roach endorses. Furthermore, Tichy contends
that her claims under the United States Constitution are stronger and that Wilton-Brillhart does
not apply to cases governed by federal law. The Court is not convinced that Wilton-Brillhart
does not apply. Nonetheless, weighing the relevant criteria under Wilton-Brillhart, the Court
sides with Tichy.
Arguing Wilton-Brillhart’s inapplicability, Tichy first contends that the issue before the
Court was already decided in Wooley v. Maynard, 430 U.S. 705 (1977). Roach counters that
Wooley is inapplicable because it applied the Younger doctrine to a criminal conviction and not
the Wilton-Brillhart doctrine to a finding of civil liability, as in the present case. Roach’s
analysis of Wooley is persuasive. The Supreme Court’s opinion in Wooley is devoid of any
reference to the Wilton-Brillhart doctrine and the state statute in Wooley was criminal as opposed
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to civil. Id. Put simply, the need for federal shelter in Wooley was significantly heightened
because it was a criminal case. By comparison, the stakes of being found liable under a city
civil ordinance are much less severe, so the Court has discretion under Wilton-Brillhart.
Tichy also contends that the Wilton-Brillhart standard is inapplicable because her federal
claim is primarily a request for injunctive relief. She then seems to imply that the Court should
only dismiss if there are exceptional circumstances. Tichy cites no authority for the proposition
that one claim can predominate the other. In fact, the Seventh Circuit follows the rule that where
both declaratory and non-declaratory relief is sought, “the district court should determine
whether the claims seeking non-declaratory relief are independent of the declaratory claim.”
R.R. Street & Co., Inc. v. Vulcan Materials Co., 569 F.3d 711, 716 (7th Cir. 2009). Whether the
non-declaratory relief is independent is determined by using a two-step process. Id. at 716 n.6.
First, the non-declaratory claim must have its own federal subject matter jurisdiction, and
second, the non-declaratory relief’s viability must not be wholly dependent on the success of the
declaratory claim. Id. If the non-declaratory claim is independent, then the Court applies the
exceptional circumstances test under the Colorado River doctrine. 2 Id. at 717. But if the nondeclaratory claim (i.e. an injunction) is wholly dependent on the declaratory relief, then the Court
maintains discretion under the Wilton-Brillhart doctrine. Id.
The Court maintains its discretion to hear Tichy’s claim because the injunctive relief she
seeks is wholly dependent on her request for declaratory relief. This Court has federal question
subject matter jurisdiction over Tichy’s request for declaratory relief because she is claiming that
the ordinance violates the U.S. Constitution, and, as earlier reasoned, her claim does not run

2

The Colorado River doctrine was set forth in Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800 (1976).
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afoul of the Rooker-Feldman doctrine. However, without considering Tichy’s contention that
the ordinance is unlawful, the source of jurisdiction for her injunctive request is not clear.
Furthermore, the only basis Tichy offers for the injunction is her request for declaratory relief.
Thus, without granting the declaratory relief, there would be no reason for this Court to enjoin
Roach from enforcing the ordinance. Therefore, Tichy’s requested injunction is wholly
dependent on her request for declaratory relief and the exceptional circumstances standard is
inapplicable. Tichy’s complaint remains within the realm of Wilton-Brillhart.
Under Wilton-Brillhart, lower federal courts “possess significant discretion to dismiss or
stay claims seeking declaratory relief, even if the court has subject matter jurisdiction.” Envision
Healthcare, Inc. v. PreferredOne Ins. Co., 604 F.3d 983, 986 (7th Cir. 2010). This is because
“[w]e live in a jurisdiction of two sovereignties, each having its own system of courts to declare
and enforce its laws in common territory.” Reiter v. Ill. Nat’l Cas. Co., 213 F.2d 946, 948 (7th
Cir. 1954). That system of federalism requires adherence to the “spirit of reciprocal comity and
mutual assistance to promote due and orderly procedure.” Id. Though the Supreme Court
maintains appellate jurisdiction, state courts have the “right to decide . . . whether an [a]ct of the
[l]egislature . . . [is] in conflict with the Constitution of the United States.” Id. But this does not
require reflexive deference to state proceedings. Rather, federal courts determine whether to
abstain and dismiss requests for declaratory relief based on “a circumspect sense of [the Court’s]
fitness informed by the teachings and experience concerning the functions and extent of federal
judicial power.” Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (quoting Public Serv.
Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 243 (1952)). In this spirit, the Wilton-Brillhart
abstention doctrine seeks to ensure wise judicial economy and administration, id. at 288, avoid
forum shopping, Reiter, 213 F.2d at 949, and avoid gratuitous interference with the orderly

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disposition of state court proceedings, see Arnold v. KJD Real Estate, LLC, 752 F.3d 700, 707
(7th Cir. 2014). With that said, “[t]he party requesting abstention bears the burden of
demonstrating that abstention is warranted.” Neumann v. Carlson Envtl., Inc., 429 F. Supp. 2d
946, 954 (N.D. Ill. Apr. 20, 2006).
Several criteria exist to assist the Court in determining whether to abstain from hearing a
request for declaratory relief. Because of the Court’s substantial discretion, there is no set list of
criteria that should be considered. Envision Healthcare, Inc. v. PreferredOne Ins. Co., 604 F.3d
983, 986 (7th Cir. 2010). However, some considerations are (1) whether the state and federal
actions involve the same parties, (2) whether one forum has an “advantage in terms of time or
earlier progress,” (3) whether the litigation is governed by state or federal law, (4) the scope of
the state litigation and whether the federal and state courts are litigating the same issues so that
the state litigation is likely to dispose of all claims presented in federal court, and (5) whether the
state court “is situated at least as well as [the federal court] to resolve the parties’ dispute” or
whether the federal litigation retains a useful purpose. See id. at 986-97; State Auto. Mut. Ins.
Co. v. Reed, No. 1:06-cv-1616-DFH-WTL, 2008 WL 885881, at *8-9 (S.D. Ind. Mar. 28, 2008).
In this case, the parties are effectively the same as in the state court litigation. In state
court, the plaintiff is the City of Indianapolis. In this Court, Tichy’s adversary is the Chief of the
Indianapolis Metropolitan Police Department, in his official capacity. The difference is
inconsequential because the police department is the relevant division within the City of
Indianapolis municipal government.
Next, Tichy’s claims are governed by both state and federal law. If her claims were
solely based on Indiana law, then that fact would weigh heavily toward abstention. See State
Auto. Mut. Ins. Co., 2008 WL 885881, at *9 (finding a lack of federal claims important because

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of the dearth of federal interest in the case). On the other hand, if Tichy’s claims were solely
based on federal law, then the Court would be less likely to abstain because of the enhanced
federal interest in the case. 3 But in the present case, Tichy’s claims arise under both federal and
state law, so the Court is not convinced that this criterion weighs measurably toward either
abstention or retention.
Neither court has an advantage in time or progress over the other. Some of Tichy’s
citations under the ordinance occurred before the federal litigation was filed, and some occurred
after. [Filing No. 26, at ECF p. 8.] If the state court proceeding was a single case that was
further along than this proceeding, that fact would weigh heavily toward abstention. See State
Auto. Mut. Ins. Co., 2008 WL 885881, at *8 (weighing toward abstention the fact that the state
court proceedings had progressed at least as far as the federal proceedings and trial in the state
court was scheduled for an earlier date). But where, as here, the state court proceeding is a series
of small cases at different stages of the litigation process, no time or progress advantage is clear.
The issues being litigated in this Court are remarkably similar to the arguments in state
court. In the Marion Superior Court, Tichy argued that the ordinance violates both the Indiana
Constitution and the First Amendment to the U.S. Constitution. [Filing No. 26-2.] Later, she
added that the ordinance violates the Equal Protection Clause, the Fourth Amendment, and the
Privileges and Immunities Clause. [Filing No. 26-5, at ECF p. 19-20.] Likewise, her complaint
in this Court alleges the ordinance violates the same elements of the U.S. Constitution and the

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Tichy very briefly argues that Wilton-Brillhart abstention is not appropriate in cases arising
under federal law. [Filing No. 27, at ECF p. 2-3.] This is incorrect. While the amount of federal
interest is one criterion the Court may consider, it is not dispositive. See Johnson v. Lopinot, No.
09-cv-1009-JPG, 2010 WL 4595669 (S.D. Ill. Nov. 4, 2010) (abstaining under Wilton-Brillhart
because the resolution of the state proceedings would fully resolve the federal case and not
merely because of the existence of federal claims).
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Indiana Constitution. [Filing No. 20, at ECF p. 5-6, ¶¶ 30-37.] This similarity weighs in favor
of abstaining because the state and federal proceedings are significantly parallel. Still, the
question of whether to abstain is broader than whether the state and federal actions are parallel.
An important question is whether the federal litigation serves a “useful purpose” independent of
the state litigation. See Medical Assur. Co. v. Hellman, 610 F.3d 371, 379 (7th Cir. 2010).
The critical criterion in this case is whether the state court is better situated to resolve the
parties’ claims and defenses than this Court, or whether the federal litigation serves a useful
purpose. While both courts could hear claims under the U.S. Constitution and the Indiana
Constitution, the state court is in a much more authoritative position to interpret the Indiana
Constitution, which it has done. In fact, the Marion Superior Court held in a January 2018
hearing that the ordinance violates the state’s preemption doctrine [Filing No. 26-9, at ECF p.
18], which is an argument Tichy also makes to this Court.
Importantly, the state court seemingly implied that the January ruling was merely a
defense to a charge under the ordinance and not a determination that Roach should stop
enforcement. Specifically, the judge stated, “but obviously [this ruling] also impacts other
panhandling cases that the City might potentially need to bring, although of course those
arguments would have to be raised, uh, at the time appropriate for those cases.” [Filing No. 269, at ECF p. 18.] Therefore, the state court proceedings do not seem destined to prevent
panhandlers from being cited in the first place.
If Roach followed up this state decision by ceasing enforcement of the ordinance, then
this Court would likely abstain because the state would have shown that it not only can resolve

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Tichy’s core complaint, but has in fact done so. 4 But this Court is compelled to take judicial
notice of the fact that Roach continued to cite Tichy for violating the ordinance even though the
Marion Superior Court ruled in the January hearing that it violates state preemption doctrine.
See City of Indianapolis v. Tichy, No. 49D04-1803-OV-009558 (Ind. Super. Ct. Marion Cnty.
2018); City of Indianapolis v. Tichy, No. 49D04-1804-OV-014332 (Ind. Super. Ct. Marion Cnty.
2018); see also 4601 Corp. v. Town of Cicero, 220 F.3d 522, 527 n.4 (7th Cir. 2010) (noting that
district courts are permitted to take judicial notice of state court proceedings). 5 Given this,
Roach falls short of meeting his burden to show that the state proceedings are better suited to
resolve the issues at hand. Tichy’s federal action still serves a useful purpose because the best
route to resolution of her complaint may be for this Court to hear her arguments that the
ordinance is unenforceable. Therefore, the Court declines to exercise its discretion to abstain.
IV. Conclusion
For these reasons, the Court has subject matter jurisdiction to hear Tichy’s complaint and
declines to exercise its discretion to abstain. Therefore, the Court denies Roach’s motion to
dismiss. [Filing No. 25.]
Date: 7/25/2018

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
Distribution: All ECF-registered counsel of record by email.
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The Court takes no position regarding the merits of Tichy’s claims. The Court only notes that
the state proceedings have not dispensed with the utility of Tichy’s federal action.
5
The Court also notes that the Indianapolis Police Department’s own website advertises that
431-702 is still enforced. Indianapolis Metropolitan Police Department, Street Vending,
http://www.indy.gov/eGov/City/DPS/IMPD/Enforcement/Traffic/Pages/vending.aspx (last
visited July 12, 2018).
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